Judge Tosses Out Gov. Kate Brown’s Coronavirus Restrictions in Oregon

SALEM, Ore. (AP) — A judge in rural Oregon on Monday tossed out statewide coronavirus restrictions imposed by Democratic Gov. Kate Brown, saying she didn’t seek the Legislature’s approval to extend the stay-at-home orders beyond a 28-day limit.

Baker County Circuit Judge Matthew Shirtcliff issued his opinion in response to a lawsuit filed earlier this month by 10 churches around Oregon that argued the state’s social-distancing directives were unconstitutional.

Brown said she would immediately seek an emergency review by the Oregon Supreme Court. Her attorneys asked the judge to stay his ruling until the high court could review the case, but he declined.

The Supreme Court ruled on a second amendment case this morning involving mental health. The court granted cert then instructed the lower court to dismiss as moot Beers v Barr, Attorney General.

What that means is this; The case is moot as a matter of law as the ATF certified Pennsylvania’s mental health rights restoration program and Beers’ rights have been restored and he has been able to purchase a firearm.
So, with no “live controversy” there is nothing to decide.

Here is a summary:

Beers was involuntarily committed to a psychiatric inpatient hospital in, 2005.
He had no further mental health issues, but was later denied a gun purchase, due to the mental health commitment.
He challenged federal law prohibiting the possession of firearms by anyone who has previously been adjudicated as mentally ill or committed to a mental institution, 18 U.S.C. 922(g)(4), arguing that, as applied to him, it violates the Second Amendment, claiming that, although he was previously involuntarily institutionalized, he has since been rehabilitated, which distinguishes his circumstances from those in the historically-barred class.

The Third Circuit rejected his arguments, noting that “the traditional justification for disarming mentally ill individuals was that they were considered dangerous to themselves and/or to the public at large. Courts are ill-equipped to determine whether any particular individual who was previously deemed mentally ill should have his firearm rights restore.”

The issue was that for anyone, previously mentally ill or convicted felon, to have their rights restored they must ask the Federal Government to restore those rights. However, congress hasn’t funded that program since the 1990’s. Instead, congress allows people to petition their state governments, but state mental heath programs must be certified by the feds and the Pennsylvania program hadn’t  been…yet.
In this case, Pennsylvania’s program was later certified, Beer’s rights were restored and later he actually had bought a gun.  So the case was moot.

But the Supreme’s didn’t just moot the case. They vacated the 3rd circuit’s ruling. “Courts are ill-equipped to determine whether any particular individual who was previously deemed mentally ill should have his firearm rights restore.

Now, that’s not a decision that means court are now ‘well-equipped’ it just means that the circuit’s ruling that court’s aren’t ‘well-equipped’ was trashed.
It’s not a clear win, but it did wipe out a bad circuit court ruling for RKBA.


LOS ANGELES (May 15, 2020) — Just days before a hearing on a motion for preliminary injunction against orders banning gun stores from operating, lawyers for the County of Ventura, California, have filed documents with federal District Court Judge Consuelo B. Marshall saying the defendants, including the County, Sheriff Bill Ayub, and Dr. Robert Levin, the County’s Public Health Officer, have issued a new order to re-open firearm and ammunition dealers throughout the county.

Key filings in McDougall v. County of Ventura, including the County’s latest order, can be viewed or downloaded online at https://www.firearmspolicy.org/mcdougall.

Ronda N. Baldwin-Kennedy, an attorney for the plaintiffs, said that the County’s latest filing was a move to avoid losing the case early. “The defendants were obviously wrong on the law and had no constitutional support for their frivolous arguments, so it makes sense for them to change course now. We are delighted that this lawsuit moved the County to issue another order so that our clients and the people of Ventura County can exercise their constitutional rights.”

“The facts are that the Ventura County defendants made it a crime for individuals to patronize and operate firearm and ammunition retailers, and worse, these government officials banned travel for firearms and ammunition as ‘non-essential’. Those are precisely the kinds of actions our Constitution was designed to protect against, so we look forward to the next phase of litigation in this lawsuit,” said the plaintiffs’ co-counsel, attorney Raymond DiGuiseppe.

Ultimately, they have already admitted in court that they violated constitutionally enumerated rights,” noted FPC Director of Legal Strategy, Adam Kraut. “Especially because there may be a second or third wave of COVID-19, we will seek an injunction so that they cannot do this again, should cases spike.”

“This legal action was and remains about winning firearms freedom one lawsuit at a time,” explained SAF founder and Executive Vice President Alan M. Gottlieb. “The county choosing to re-open firearm and ammunition transactions rather than face our motion in court is a victory for gun owners and the Second Amendment.”

“Onerous California laws make access to operating gun stores a requirement to exercise your Second Amendment rights,” explained CGF Chairman Gene Hoffman. “The right to self-defense is only more important during times of crisis, so Ventura Health Officer Dr. Levin appropriately changed course and issued a new order. Just as we have required of governments around the nation, gun stores in Ventura are now able to re-open.”

The individuals in the case were backed and joined by Firearms Policy Coalition (FPC), Second Amendment Foundation (SAF), and California Gun Rights Foundation (CGF). Defendants in the case include Ventura County Sheriff William “Bill” Ayub, William T. Foley, the Director of the Ventura County Public Health Care Agency, Robert Levin, the Public Health Medical Director and Health Officer for Defendant County of Ventura, and the County of Ventura, California.

“County of Ventura officials were either outrageously ignorant or arrogant to think they had the authority to redline fundamental, individual rights,” said FPC President Brandon Combs. “They should remember that they are just local officials on a power trip, not dictators, and we will continue to seek justice for their abusive constitutional violations.”

Individual firearm or ammunition purchasers, retailers, and ranges affected by ‘stay-home’ or shutdown orders are encouraged to report their concerns and potential civil rights violations to FPC’s COVID-19 Issue Hotline at www.FPChotline.org.

Michigan Gov. Gretchen Whitmer Slapped With Lawsuit Over ‘Drastic’ Lockdown

Medical professionals and a patient in Michigan have filed a lawsuit against Democratic Gov. Gretchen Whitmer as the battles grow between her and those favoring relaxing the economic shutdown she has imposed in response to the coronavirus crisis.

Their lawsuit in federal court comes at a time when Ms. Whitmer continues to engage in a public spat with a 77-year-old barber, who has defied various orders and as of Thursday morning continued to cut hair at his Owosso shop.

The plaintiffs allege in federal court that Ms. Whitmer’s “drastic, unprecedented [and] unilateral executive actions” to cease economic activity that her office deemed nonessential were based on “grossly inaccurate” models that no longer apply and therefore should be lifted.

Federal Judge Blocks NC Governor’s Restrictions on Religious Services

A federal judge’s order Saturday allows North Carolina religious leaders to open their doors to their congregations, in spite of the governor’s warning that they risk spreading coronavirus.

Gov. Roy Cooper said he wouldn’t appeal the ruling blocking his restrictions on indoor religious services.

Saturday’s order pointed out that while only up to 10 people are allowed inside for religious services under Cooper’s stay-at-home order, that same standard doesn’t apply to other entities, such as businesses that are limited to 50% capacity, and funeral services, which allow up to 50 people.

Lawsuit Filed Over DOJ’s Second Amendment FOIA Foot-dragging

A lawsuit was filed Thursday by Stamboulieh Law, PLLC, in the United States District Court for the District of Columbia against the Department of Justice. The complaint, filed on behalf of this correspondent, was made necessary due to the DOJ’s failure to turn over records relating to a Freedom of Information Act (FOIA) request seeking documentation of department actions in defense of the Second Amendment.

That requested documentation included:

  • Any and all Statements of Interest filed in lawsuits dealing with and/or related to the Second Amendment to the United States Constitution; and
  • Any and all documents and records related to enforcement of the Second Amendment via 34 U.S.C. § 12601; and
  • Any and all documents and records related to deliberations or discussions, including emails, correspondence or memoranda, related to protecting and defending the Second Amendment.

The reason behind the FOIA request was because of a Statement of Interest representing the United States filed by the DOJ in a First Amendment case decrying preconditions to exercising that right.

“Such extreme preconditions to speech might not be out of place in Oceania, the fictional dystopian superstate in George Orwell’s Nineteen Eighty-Four,” the government’s statement asserted. “The First Amendment to the United States Constitution, however, ensures that preconditions like these have no place in the United States of America.”

“But ‘preconditions like these’ have a place in the United States of America when it comes to the right of the people to keep and bear arms?” this column asked in January. “So they’ll go after violations for other rights, but where the Second Amendment is concerned, state entities can do as they please without fear of federal checks? Even though infringements directly affect the ‘security of a free State’ by disarming the citizen Militia?”

The DOJ statement elaborated on its powers to correct infringements:

“The United States further states that the Attorney General enforces 34 U.S.C. § 12601 ‘which provides in relevant part that governmental authorities and their agents may not ‘engage in a pattern or practice by law enforcement officers… that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States’ and that the Attorney General ‘may in a civil action obtain the appropriate equitable and declaratory relief to eliminate the pattern or practice.’”

That’s appropriate. We hear the term “law enforcement” all the time. Considering the whole reason we have the Constitution in the first place (as articulated in its Preamble), we hear far too little about rights enforcement. Has DOJ ever issued statements or published documents related to the Second Amendment comparable to what it has done on the First? If the answer is “No,” what does that tell us?

It’s too bad the department that penned those fine words decrying preconditions doesn’t seem to want to let us hear more, at least as far as the right to keep and bear arms is concerned. Attorney General William Barr is certainly not shy about enforcing gun laws. So why does his DOJ appear so reluctant to enforce “gun rights”?

DOJ’s required-by-law time period to comply with the FOA request has expired, as has the extended time period it requested. Expecting the nation’s top law enforcement agency to comply with the nation’s laws hardly seems out of line, so this action has unfortunately been made necessary by their own inaction.

And if it was a matter of COVID-19 putting a delay on things, all they had to do was ask. We’re not trying to be unreasonable – it’s not like anybody is going to get rich on having court costs covered — and this litigation would not have been necessary in the first place had the DOJ simply done its job.

We seek information “We the People” have a right to know, and to expect an accounting of themselves by our supposed “public servants.” In response, government attorneys have instead gone on the offense with arrogant dismissals:

“In short, there is a tangled web of connections between a small cadre of firearms activists and their efforts to recover fees through largely unsuccessful FOIA litigation.”

I realize none of us are self-important beltway trough-feeders with virtually unlimited access to other people’s money, but we’ll see about that. We did OK forcing the government to cough up court-martial records on the Texas church shooter and we’re taking our chances here.

Our complaint follows:


The common consensus is that Scalia’s obiter dicta in Heller was because Kennedy, as the then ‘squish’, needed to be schmoozed by some ‘wriggle room’ language to get him to sign onto the decision.

The Supreme Court’s ‘Dangerous And Unusual’ Error Is Worse Than Michigan’s Rifle-Carrying Protestors
Contrary to the Supreme Court’s claim in District of Columbia v. Heller, the term ‘dangerous and unusual weapons’ has historically not been applied to weapons themselves, but to carrying them in an intimidating manner.

It is for defense against tyranny that the Second Amendment protects the right to keep and bear arms and, as the late Jeff Cooper observed in The Art Of The Rifle, “a citizenry armed with rifles simply cannot be tyrannized.” Cooper wrote, “there are more good men than evil, and while the latter cannot be persuaded to the path of righteousness by propaganda, they can certainly be corrected by good men with rifles.” Cooper, a Marine who, as a civilian, developed the modern technique of defensive pistol shooting, knew the difference between a rifle and a handgun.

Not everyone does. On April 30th, among the hundreds who protested in Lansing against Gov. Gretchen Whitmer’s lockdown order related to the most recent virus from communist China, a few carried rifles. They did so prematurely. Whatever may be said about Whitmer’s order, it does not constitute tyranny, as indicated by the facts that people were able to protest freely, Whitmer’s order is being challenged in court, and an effort to recall Whitmer is underway.

Nor does Whitmer’s order threaten to render people defenseless against tyranny, as did General Gage’s effort of April 19, 1775, as do semi-automatic firearm bans imposed by Democrats in several states, as did the Canadian Liberal Party’s recent ban on 1,400 makes and models of firearms, and as the Supreme Court’s decision in District of Columbia v. Heller (2008) may, for reasons explained herein.

The late baseball legend Yogi Berra once said “you can observe a lot by just watching.” Had the rifle-carriers remembered that wisdom, they would have noticed that the proverbial 99.9 percent of protestors—some of whom likely carried concealed handguns for self-defense as they would any other day—left their rifles at home.

Holding the solution inherent in the Second Amendment in reserve, the majority of protestors exercised rights protected by the U.S. constitution’s First Amendment and by the Michigan constitution’s analogous provision, “The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances.”

The majority of protestors understood intuitively what the Framers of our Bill of Rights did in part because of their familiarity with William Blackstone’s Commentaries On The Laws Of England, of which the section pertinent in this instance reads: “To vindicate (the “absolute” rights of personal security, personal liberty, and private property), when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.”

Emphasis on the word “lastly.” The right to arms, protected by U.S. and Michigan constitutions, is the right that protects all other rights. However, it is to be exercised for that purpose as a last resort or in the most egregious of acute circumstances, not when there is no threat to life or serious threat to liberty, and certainly not when a lesser threat—such as a temporary lockdown order—can be dealt with through the normal political and legal processes.

Semi-Automatic Rifles Are Not ‘Dangerous And Unusual’
Though the few who carried rifles at the Lansing protest did so prematurely, they did not, as one TV talk show host claimed, threaten law enforcement officers or anyone else. An armed threat is illegal and would have resulted in an arrest, and no such arrest has been reported. The distinction between merely possessing a firearm and using it in a threatening manner should be obvious to everyone. However, in District of Columbia v. Heller (2008) the Supreme Court ignored the distinction to justify banning one type of firearm, a mistake Democrats hope the Court will repeat when it hears a case challenging a ban on semi-automatics.

Heller correctly observed that the Second Amendment protects an entirely fundamental, individual right “to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms,” and concluded, therefore, that the District’s ban on the possession of handguns was unconstitutional. However, as I explained here and here, the Court additionally opined, contradictorily and incorrectly, that the right to arms is limited to those that are “in common use” and, therefore, the federal law that prohibits the private possession of a fully-automatic firearm manufactured after May 19, 1986—an arguably uncommon type of firearm, in part because of that law—is not unconstitutional.

The Court arrived at that conclusion by mischaracterizing its decision in U.S. v. Miller (1939) and by claiming that the ban on fully-automatic firearms “is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

However, as America’s leading Second Amendment historian, attorney Stephen Halbrook, explained in ‘Going Armed With Dangerous And Unusual Weapons To The Terror Of The People: How The Common Law Distinguished The Peaceable Keep And Bearing Of Arms, weapons have not generally been considered “dangerous and unusual” in and of themselves, nor if they have been carried in a peaceable manner, but rather if they have been carried in a manner apt to terrify people. As an early example, Halbrook noted, “it was an offense under the (English) Statute of Northampton (1328) to go or ride armed in a manner that creates an affray or terror to the (King’s) subjects. It was not an offense simply to carry arms in a peaceable manner.”

Courts in this country have held essentially the same view. For example, in State v. Huntley (1843), the Supreme Court of North Carolina explained, “the carrying of a gun, per se, constitutes no offense. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun. It is the wicked purpose, and the mischievous result, which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.”

Cases challenging state bans on semi-automatic firearms have been appealed to the Supreme Court of the United States, and Democrats working toward civilian disarmament hope to prevail in part by characterizing semi-automatics as “dangerous and unusual” even when they are kept and borne in a peaceful manner, and even though they are owned by millions of Americans.

In reviewing those bans, the Court should heed Justice Brett Kavanaugh’s recent suggestion that its errant rulings may warrant correction when they are “egregiously wrong” and have had “real-world effects on the citizenry.” Heller’s “dangerous and unusual” error surely fits that description.

Gun Group Sues NJ To Reopen Outdoor Shooting Ranges

1. This lawsuit challenges Defendants’ actions mandating and enforcing the closure of all outdoor firearm training ranges in the State. This action effectively bans typical, law-abiding
citizens in the State of New Jersey from exercising their constitutional right to practice with firearms to gain and maintain proficiency in firearms use.

2. Prohibiting training with firearms is akin to prohibiting the exercise of Second Amendment rights altogether. “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”

3. Despite the centrality of range-training to the exercise of Second Amendment rights, Governor Murphy has, since March 21, 2020, banned that activity throughout the State of New Jersey with the stroke of a pen, effectively preventing New Jersey’s citizens from obtaining or maintaining their proficiency in firearms use. Governor Murphy’s ban is flatly contrary to the Second Amendment.

4. The existence of the COVID-19 pandemic does not justify Governor Murphy’s actions. Plaintiffs recognize that the pandemic presents significant and urgent problems for state officials seeking to ensure the safety and well-being of citizens of New Jersey. But the State’s untenable regulatory choices refute any assertion that COVID-19 requires New Jersey to shut down all outdoor gun ranges…………….

I’m sorry, Congresscritters, there is no ‘reform’ possible that will guarantee that another administration as corrupt as Obama’s was will not be able to abuse the power this court has. A-B-O-L-I-S-H  It, now.

FISA reform to hit the Senate floor: Here’s what to know

bipartisan bill passed by the House in March that seeks to reform the secret Foreign Intelligence Surveillance Act (FISA) court process will hit the Senate floor Tuesday.

The FISC will face more oversight 

The new legislation requires the attorney general to personally sign off on surveilling government officials.

Attorney General Bill Barr said in March he supported the passage of the FISA bill, saying it “will protect against abuse and misuse in the future.”

The Foreign Intelligence Surveillance Court (FISC) was created for use by federal law enforcement and intelligence agencies to request surveillance warrants against foreign spies inside the U.S.

The FBI obtained a FISA warrant to surveil former Trump campaign adviser Carter, accused by the Steele dossier of having ties to Russia. A Justice Department assessment released by the FISC in January revealed that at least two of the FBI’s surveillance applications to secretly monitor former Trump campaign adviser Carter Page lacked probable cause.

Horowitz’s FISA report revealed there were at least 17 “significant inaccuracies and omissions” in the Page FISA applications.

The June 2017 Page FISA warrant renewal, which was one of two deemed invalid by the DOJ, was approved by then-Acting FBI Director (and now CNN contributor) Andrew McCabe, as well as former Deputy Attorney General Rod Rosenstein. The April 2017 warrant renewal was approved by then-FBI Director James Comey.

The bill will also expand when FISA judges should appoint an outsider to critique the government’s position. Currently, judges are only to do so when addressing a novel and significant question of interpreting surveillance law.

Section 215 extended but reined in 

A controversial portion of the FBI’s surveillance powers, known as Section 215, gave the government broad powers to demand “business records” from companies in the name of national security investigations.

The new legislation allows obtaining business records to continue but bans using a business records order to collect information like cell phone data that in a criminal investigation requires a warrant, which has a higher legal standard.

The National Security Agency (NSA) previously used Section 215 to collect bulk phone data records, which was highly controversial. In recent years, the bulk metadata collection was outlawed and a narrowly tailored program was allowed, but now that program would be officially ended under the legislation.

Some surveillance measures will be reauthorized

The House bill reauthorizes a program dealing with “roving” wiretaps, permitting surveillance on subjects even after they’ve changed phones.

It will also reauthorize a program allowing for the surveillance of “lone wolf” suspects, those who have no connection to a known terrorist group.

Stricter penalties for abusing the FISC process for political purposes

False declarations before FISC or other FISA abuses, including engaging in electronic surveillance without authorization, disclosing or using information obtained by e-surveillance without authorization, will now have a penalty of up to eight years in prison, up from five.

The bill has a section stipulating the penalty also applies to “an employee, officer, or contractor of the United States Government [who] intentionally discloses an application, or classified information contained therein, for an order under any title of this Act to any person not entitled to receive classified information.”

The bill has bipartisan support, but some vocal opposition 

USA Freedom Reauthorization Act passed by a 278-136 vote in House. It brought together the staunchest President Trump supporters like Reps. Devin Nunes, R-Calif., and Jim Jordan, R-Ohio, and some of his fiercest critics like Reps. Jerrold Nadler, D-N.Y., and Adam Schiff, D-Calif., who wanted improvements to protect Americans’ privacy and safeguard against surveillance abuses.

Some senators are undecided on the bill, and others oppose it. Sen. Rand Paul, R-Ky., opposes the bill, but has proposed an amendment. “None of the reforms prevent secret FISA court from abusing the rights of Americans. None of the reforms prevent a President of either party from a politically motivated investigation. Big Disappointment!” Paul tweeted in March. Sen. Mike Lee, R-Utah, called on the president to veto the bill if it passes as it stands. He too has proposed an amendment.

The Senate will debate three amendments to the bill: the Paul amendment advocating for the privacy rights of Americans, the Lee-Leahy amendment focused on Amicus reforms and exculpatory evidence that would strengthen the role of outside advisors and the Daines-Wyden amendment that would prevent law enforcement from obtaining Internet browsing and search data history.

Gun group fires lawsuit at Nikki Fried over concealed permits
[Florida] Agriculture Commissioner called Young Americans for Liberty ‘obscure right-wing fringe’

The gun-rights group Young Americans for Liberty sued Agriculture Commissioner Nikki Fried claiming she’s depriving Floridians of their rights. The suit aims to lift a suspension of online concealed weapons permit applications.

“Nikki Fried thinks that your right to self-defense is negotiable. She’s wrong,” said Cliff Maloney, YAL President. “This is a blatant disregard for the rule of law, and I will not idly sit by while Nikki Fried uses this crisis to enact her gun-grabbing agenda. I encourage all Americans to join this fight for our rights. We either believe in liberty in times of crisis or we do not believe in liberty at all.”……….

“Commissioner Fried has not restricted processing of concealed weapons license applications; on the contrary, our department has processed more than 54,000 concealed weapons license applications since March 1, with an average review time of just 1 to 2 days,” said Franco Ripple, Fried’s Communications Director.

“Despite misinformation from special interest groups, we are continuing to process both new applications and renewals timely, and Commissioner Fried has also issued emergency orders extending expiring licenses by 90 days.”

Maloney’s group threatened litigation over the issue last month, saying the lone Democrat on Florida’s Cabinet was stalling with applications. The activist criticized her then for finding time to hold fundraisers but not to find a workaround on the fingerprint issue with online users.

Fried has since cited the potential lawsuit in a mass email to supporters. She suggested at the time she was simply following procedures that fell by the wayside with past Agriculture Commissioners. Former Commissioner Adam Putnam’s office notoriously stopped conducting proper background checks on such permits for a year because of a technical issue.

Supreme Court declines to lift Pennsylvania order closing non-essential businesses

The Supreme Court on Wednesday declined to lift an executive order by Pennsylvania Gov. Tom Wolf that mandated all non-essential business close in order to prevent the spread of COVID-19.

A conservative political action committee and a group of businesses petitioned the Supreme Court to remove the executive order, saying it “has and is continuing to cause irreparable harm.”

The Supreme Court denied the request without comment and there were no known dissents.

Wolf’s order mandated all non-life-sustaining businesses temporarily close while those that remain open were ordered to comply with social distancing standards.

The businesses filed an emergency request with the Pennsylvania Supreme Court, alleging the order was unconstitutional.

The state court denied the request, leading the businesses to call on the U.S. Supreme Court to review the lower court’s decision. The plaintiffs said the order “permits the continued closure of petitioners and tens of thousands of other businesses across Pennsylvania and as such constitutes severe, immediate and ongoing deprivation of their rights under the U.S. Constitution.”

Pennsylvania’s attorney general, Josh Shapiro, filed a response to the justices earlier this week urging the Supreme Court not to intervene.

“Applicants seek to upend the status quo and force Pennsylvania to prematurely reopen all businesses locations, regardless of public health data and contrary to the phased reopening currently underway based on that data,” Shapiro wrote.

The court ruled along ideological (that is, political) lines

Court Denies Trump’s Bid To Block Immigrants Who Can’t Afford Health Care

An appeals court on Monday blocked the Trump administration’s request to allow for a ban on immigrants who don’t have health care or otherwise cannot afford health care expenses.

The Ninth Circuit Court of Appeals rejected the White House’s motion for a stay of a court order that prevents the administration from enforcing its proclamation. The divided panel found that the administration does not have “limitless power” to deny immigrants based on their economic standing.

“[T]he government’s claim of harm in the form of costs to healthcare providers and taxpayers by uninsured immigrants was not supported by the record, and the court was not required to accept the Proclamation’s conclusory findings as true,” the 97-page ruling stated.

The appeals panel went on to say that the administration failed to demonstrate irreparable harm absent a stay and that harm is “purely monetary.”

As for the order itself, the panel deemed that the plaintiffs would likely succeed in their claim that the order conflicts with the Violence Against Women Act, the Immigration and Nationality Act (INA), Obamacare, and the “public charge” provision within the INA.

The Trump administration first introduced the directive — Presidential Proclamation No. 9945, or the “Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System” — in October 2019. The order would’ve essentially prohibited the entry of any immigrants applying for visas unless they prove they can obtain health insurance within 30 days of entering the U.S. or otherwise indicate they can afford their own medical care.

However, the order was immediately challenged in court by opponents of the president’s immigration agenda………….

The panel was divided along ideological lines.

Chief Judge Sidney Thomas and Judge Marsha Berzon, both appointees of President Bill Clinton, wrote the majority opinion, and Judge Daniel Bress, a Trump appointee, wrote the dissent.

Federal Appeals Court Bars Kentucky From Banning Drive-Up Church Services
Sixth Circuit Court of Appeals: “Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers?”

We have followed several court cases involving bans on drive-in church services, including on in Louisville, Kentucky, and another in Greenville, Mississippi. We addressed likely litigation in the age of pandemic at our April 26, 2020, live event, Constitutional Rights in the Age of Government Overreach.

To the extent there is a pattern emerging, it is that the state cannot bar religious services where CDC social distancing and related precautions are followed, if the state also allows drive-up and drive-through practices for secular institutions like fast food and liquor stores.

You’d think that would be obvious to public officials, but they seem to have it out for church services, so the courts are intervening.

The Sixth Circuit Court of Appeals affirmed that principle in a case from Kentucky involving the Maryville Baptist Church. (This is a different case than the Kentucky case we previously wrote about.)

The original issue was a ban on in-person church services, which the church held despite state order. The police took down the license plate numbers of vehicles in the parking lot and sent notices of possible criminal prosecution.

The church and one of the parishioners sued for an injunction, includng objecting to the extent the order also prohibited drive-up services. The District Court denied an injunction (pdf.), finding that the ban on in-person services was warranted, and that the Governor’s Order did not apply to drive-up services. The church filed a motion for an emergency injunction pending appeal (pdf.) which the state opposed (pdf.)

The Sixth Circuit ruled on Saturday, May 2, 2020, granting in part the injunction pending appeal. The Order (pdf.) provides a good example of how we can expect court’s to address these issues: The appeals court does not question the government’s authority to impose substantial health-related restrictions even on religious groups. But those restrictions both must be applied equally to secular and religious groups, and must have a legitimate health-related purpose. Where, as in this case, there was no issue of compliance with social distancing practices, there was no legitimate purpose in prohibiting churches from doing what drive-up and drive-in restaurants and big box stores do.

Here are key excerpts from the Order. First, the background on the retrictions:

The [Kentucky] orders, according to the Church, prohibit its members from gathering for drive-in and in-person worship services regardless of whether they meet or exceed the social distancing and hygiene guidelines in place for permitted commercial and other nonreligious activities….

Governor Beshear issued two pertinent COVID-19 orders. The first order, issued on March 19, prohibits “[a]ll mass gatherings,” “including, but not limited to, community, civic, public, leisure, faith-based, or sporting events.” R. 1-5 at 1. It excepts “normal operations at airports, bus and train stations, . . . shopping malls and centers,” and “typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing.” Id.

The second order, issued on March 25, requires organizations that are not “life-sustaining” to close. R. 1-7 at 2. According to the order, religious organizations are not “life-sustaining” organizations, except when they function as charities by providing “food, shelter, and social services.” Id. at 3. Laundromats, accounting services, law firms, hardware stores, and many other entities count as life-sustaining.

Then, the enforcement:

On April 12, Maryville Baptist Church held a drive-in Easter service. Congregants parked their cars in the church’s parking lot and listened to a sermon over a loudspeaker. Kentucky State Police arrived in the parking lot and issued notices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recorded congregants’ license plate numbers and sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.

Next, the religious liberty considerations:

The Church says these orders and enforcement actions violate its congregants’ rights under Kentucky’s Religious Freedom Restoration Act and the free-exercise guarantee of the First and Fourteenth Amendments to the U.S. Constitution…..

The Governor’s actions substantially burden the congregants’ sincerely held religious practices—and plainly so. Religion motivates the worship services. And no one disputes the Church’s sincerity. Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, amount to a significant burden on worship gatherings. See Gonzales v. O Centro Espirita Beneficiente Uniao, 546 U.S. 418, 428–32 (2006); Barr v. City of Sinton, 295 S.W.3d 287, 301 (Tex. 2009). At the same time, the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus. All accept these conclusions.

The likelihood-of-success inquiry instead turns on whether Governor Beshear’s orders were “the least restrictive means” of achieving these public health interests….

The adverse treatment of religious groups showed government was not using the least restrictive means:

The way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches. The orders permit uninterrupted functioning of “typical office environments,” R. 1-5 at 1, which presumably includes business meetings. How are in-person meetings with social distancing any different from drive-in church services with social distancing?

Kentucky permits the meetings and bans the services, even though the open-air services would seem to present a lower health risk. The orders likewise permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service. On the same Easter Sunday that police officers informed congregants they were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church. The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the Governor did not narrowly tailor the order’s impact on religious exercise.

In responding to the state and federal claims, the Governor denies that the ban applies to drive-in worship services, and the district court seemed to think so as well. But that is not what the Governor’s orders say. By their terms, they apply to “[a]ll mass gatherings,” “including, but not limited to, . . . faith-based . . . events.” R. 1-5 at 1. In deciding to open up faith-based events on May 20, and to permit other events before then such as car washes and dog grooming, see Healthy at Work: Phase 1 Reopening, https://govstatus.egov.com/ky-healthy-at-work (last visited May 2, 2020), the Governor did not say that drive-in services are exempt. And that is not what the Governor has done anyway. Consistent with the Governor’s threats on Good Friday, state troopers came to the Church’s Easter service, told congregants that they were in violation of a criminal law, and took down the license plate numbers of everyone there, whether they had participated in a drive-in or in-person service….

The orders allow “life-sustaining” operations and don’t include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors….

Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.

Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name.” Matthew 18:20 ….

Compliance with social distancing was key:

Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the socialdistancing rules against them for that reason….

Injunction granted in part:

Accordingly, the plaintiffs’ motion for an injunction pending appeal, and their motion to expedite briefing, oral argument and submission on the briefs, is GRANTED IN PART. The Governor and all other Commonwealth officials are hereby enjoined, during the pendency of this appeal, from enforcing orders prohibiting drive-in services at the Maryville Baptist Church if the Church, its ministers, and its congregants adhere to the public health requirements mandated for “life-sustaining” entities.

The Sixth Circuit opinion pretty much follows the legal reasoning I suggested would apply when we had our prior live event (pats self on back).

Courts will not prevent government stay-at-home orders as a general matter, but there must be proof the terms are necessary to fighting the spread of a contagious and deadly disease, are not arbitrary or vindictive, and are applied equally.


After NYS Rifle & Pistol is dismissed, SCOTUS distributes 10 Second Amendment Cases for 5/1/2020 Conference (Updated)
Four justices have signaled they are ready to take a 2nd Amendment case. Are there 5 votes to reverse?

On Monday, the Supreme Court decided NY State Rifle & Pistol Association. (Let me know if you’d like an edited copy.). Four Justices signaled they were ready to take another Second Amendment case.

Justice Kavanaugh wrote in his concurrence:

And I share Justice ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.

Justice Alito wrote in his dissent, joined by Justices Thomas and Gorsuch:

We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.

Immediately after the case was decided, the Supreme Court distributed 6 Second Amendment cases for the May 1, 2020 conference (H/T to the Duke Center for Firearms Blog.)

  1. Mance v. Barr (5th Circuit)—challenge to federal prohibition on out-of-state handgun purchases
  2. Pena v. Horan (9th Circuit)—challenge to California’s prohibition on “unsafe” handguns (including “microstamping” requirement)
  3. Gould v. Lipson (1st Circuit)—challenge to Massachusetts’s “may issue” conceal carry licensing regime
  4. Rogers v. Grewal (3rd Circuit)—challenge to New Jersey’s “may issue” conceal carry licensing regime
  5. Cheeseman v. Polillo (N.J. Supreme Court)— challenge to New Jersey’s “may issue” conceal carry licensing regime
  6. Ciolek v. New Jersey (N.J. Supreme Court )—challenge to New Jersey’s “may issue” conceal carry licensing regime

Mance v. Barr is the oldest case on the list. My colleague Alan Gura filed this petition in November 2018. It was originally distributed for the 3/29/2019 conference. But then was “rescheduled.” The petition was then distributed at the 4/12/19 conference. Yesterday, the Court scheduled the next distribution for 5/1/2020. This petition is an excellent vehicle if the Court wants a law-profile case that won’t reach any sweeping rulings.

Or, if the Court wants to take a conceal carry case, Rogers v. Grewal has been floating around since December 2018. (I am engaged in several gun-related cases with the New Jersey Attorney General). The two criminal prosecution cases can be held over, and vacated if Rogers prevails.

Once the Court decides one, or more of these cases, and clarifies the appropriate level of scrutiny, the other cases can be GVR’d.

UpdateSCOTUSBlog located four more Second Amendment cases that were distributed for the 5/1/20 conference:

  1. Worman v. Healey (1st Circuit)—challenge to Massachusetts ban on “assault weapons” and large-capacity magazines
  2. Malpasso v. Pallozzi (4th Circuit)—challenge to Maryland’s “may issue” conceal carry license regime
  3. Culp v. Raoul (7th Circuit)—Challenge to Illinois’s ban on allowing non-residents to apply for conceal carry license
  4. Wilson v. Cook County (7th Circuit)—Challenge to Cook County’s ban on “assault weapons” and large-capacity magazines

We should know Monday morning whether there is a new grant. And invariably, the local governments will try to moot the cases. Again.

Some analysis on the NYSPA case.

Court sends New York Second Amendment case back to lower courts without ruling on the merits

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case in which the justices ruled today was filed in 2013 [SEVEN (7) YEARS!! ed.] by New York City residents who have licenses to have guns at their homes, as well as by an association of New York gun owners. The gun owners wanted to be able to take their guns to target ranges and weekend homes outside the city, but they were barred from doing so by the city’s ban on the transport of licensed handguns outside the city, which was enacted in 2001.

The Supreme Court agreed to review the gun owners’ case in January 2019, after both a federal district court in New York and the U.S. Court of Appeals for the 2nd Circuit upheld the ban. But before the justices could hear oral argument last December, the city argued that the case should be dismissed because it had repealed the ban and the state had changed its laws. As a result, the city suggested, the gun owners had received everything that they had asked for, and the case was moot.

The justices allowed the case to move forward, but today a majority of the court sent the case back to the lower court without weighing in on the merits of the gun owners’ Second Amendment claims. The court’s two-page opinion – which was unsigned but apparently joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh – explained that, as a result of the changes to state law and the city’s rule, the gun owners have gotten exactly what they had asked for: They can now take their guns to a second home or a shooting range outside the city.

The court turned next to the gun owners’ claim that the new rule still violates their Second Amendment rights because they can’t stop for “coffee, gas, food, or restroom breaks” en route. The court noted the city’s assertion that the gun owners are allowed to make such stops and stated that, in any event, the Supreme Court’s practice is not to referee that dispute but instead to send it back for the lower courts to decide. In the same vein, the court declined to weigh in on whether the gun owners can seek damages for the city’s violation of their rights under the old rule when they had not previously done so, leaving that question for the lower courts as well.

Justice Samuel Alito dissented from today’s decision, in a 31-page opinion that was joined in full by Justice Neil Gorsuch and in large part by Justice Clarence Thomas. Alito was sharply critical of the decision to dismiss the case as moot, arguing that his colleagues were allowing “our docket to be manipulated in a way that should not be countenanced.” First of all, Alito argued, the case is not moot: The gun owners had alleged that the Second Amendment gives them “unrestricted access” to gun ranges and vacation homes outside the city, “and the new laws do not give them that.” As a result, Alito reasoned, although the gun owners “got most” of what they wanted, they did not get all of it, “and that means that the case is not dead.” Moreover, Alito added, if the court were to conclude, as the gun owners “request and as I believe we should,” that the city’s transport ban violated the Second Amendment, the district court “on remand could (and probably should) award damages,” which would also be enough to stave off mootness.

Addressing the merits of the gun owners’ claims, Alito concluded that it is not “a close question” whether the city’s transport ban violated the Second Amendment. In his view, the transport ban involves the same “core Second Amendment right” at the heart of the court’s 2008 decision in District of Columbia v. Heller, which held that the Second Amendment protects the right to have a handgun in the home for self-defense. The city’s arguments about the extent to which the transport ban protects public safety, Alito suggested, “were weak on their face, were not substantiated in any way, and were accepted below without no serious probing.” And if it is true this case is typical of the way that Heller has been applied in the lower courts, Alito cautioned, “there is cause for concern.”

Justice Brett Kavanaugh filed a concurring opinion in which he explained that he agreed with the majority that the gun owners’ original claims are moot and that the new claims should be addressed first by the lower courts. But Kavanaugh also indicated that he agreed with Alito’s “general analysis of Heller and” McDonald v. City of Chicago, in which the court made clear that the Second Amendment applies fully to the states, and that he shares Alito’s “concern that some federal and state courts may not be properly applying Heller and McDonald.” Kavanaugh posited that the Supreme Court “should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

It surely took them long enough to finally make up their minds. From the quotes, it appears that Kavanaugh wanted a ‘better’ case to make a ruling.
I can’t say I totally disagree with him as I think he believes (what with Roberts being the new “squish”) that they’d wind up with a very narrow decision and then not revisit RKBA for another 10 years.

Supreme Court declines to rule on its first Second Amendment case in nearly a decade

The Supreme Court said Monday that it will not issue a ruling in a closely watched case over a New York gun regulation that barred transport of handguns outside the city, including to second homes and firing ranges.

In an unsigned opinion, the court said that the rollback of the rule by city and state officials after the court agreed to hear the case effectively ended the dispute without the justices needing to intervene. 

It was the first Second Amendment case to reach the top court in nearly a decade. The justices have not waded into the highly charged debate over gun rights since expanding the reach of the Second Amendment in a pair of cases in 2008 and 2010.

Conservatives were hoping the court, which has a new 5-4 conservative majority, would use the New York case to limit regulations on firearms further. But the outcome of the case was telegraphed in December during oral arguments, when the court spent little time addressing the underlying constitutional questions raised by the New York regulation.

Justice Brett Kavanaugh, a President Donald Trump appointee who’s known to have an expansive view of gun rights, wrote separately to say he agreed with the court’s handling of the “procedural issues” raised by the case, but urged his colleagues to hear another Second Amendment case “soon.”

Three of the court’s Republican appointees, Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, said they would not have dismissed the case. Alito, in an opinion joined by Gorsuch and in part by Thomas, wrote that by declining to rule in the case the court allowed itself to be “manipulated.” 

While New York City had previously defended its gun regulation in court, once the Supreme Court agreed to review it, both city and state “sprang into action to prevent us from deciding this case,” Alito, a George W. Bush appointee, wrote.

He added the the city’s easing of the regulation did not necessarily grant the gun owners who brought the case all the relief that they had sought. He said the new measure still requires trips outside the city to be direct.

“What about a stop to buy groceries just before coming home? Or a stop to pick up a friend who also wants to practice at a range outside the City? Or a quick visit to a sick relative or friend who lives near a range?” Alito wrote.

Alito’s comments echoed lines of argument raised in December.

The attorney for the gun owners, Paul Clement, had said during arguments that his clients could still be prosecuted for a simple coffee stop under the city’s new rule. But Richard Dearing, who argued on behalf of New York, said there would be no such prosecutions.

The court’s unsigned opinion explicitly declined to address controversies relating to the “new rule” over coffee stops and bathroom breaks.

The opinion also did not engage with the argument raised by the gun owners that they could seek financial damages based on the old rule, instead noting that those new issues would have to be raised first in the lower courts.

The case is New York State Rifle & Pistol Association v. City of New York, No. 18-280.

Virginia Judge Halts Northam’s Order To Close Indoor Gun Ranges

A circuit court judge in Lynchburg, Virginia has overturned a portion of Gov. Ralph Northam’s executive order that declared indoor gun ranges “places of amusement” that are non-essential and must shut down during his state of emergency. Judge F. Patrick Yeatts declared in an order on Monday that Northam’s actions are likely to have exceeded his constitutional authority, and declared that the portion of the governor’s executive order on essential businesses that deals with indoor ranges not be enforced while the litigation continues.

Yeatts noted in his decision that the Virginia state constitution declares that “the body of the people, trained to arms is the proper, natural safe defense of a free state.” Since that is the case, clearly the right to bear arms includes the right to train with them. Since gun ranges provide a place where that training can take place, they are protected under the right to keep and bear arms.

The judge agreed with Gov. Northam that he has great deference in times of emergency, but stated that a Virginia law passed in 2012 (and supported by Northam, who was a state senator at the time) prohibits the governor from taking any action, even in a state of emergency, that interferes with the right to keep and bear arms.

Northam had argued that under an intermediate scrutiny standard of review, his closures should be upheld. Yeatts declined to do so, noting that there under any standard of review the governor isn’t likely to prevail in his defense, but pointing out that if he had to decide on what level of judicial review to use, he would have gone with strict scrutiny, given that “proper training and practice at a range… is fundamental to the right to keep and bear arms, even necessary for the self-defense concern expressed by the governor.”

The governor also argued that economic concerns “are not enough and that outdoor gun ranges provide a sufficient alternative to indoor ranges.” SafeSide Lynchburg, the indoor range that brought the lawsuit along with the Virginia Citizens Defense League, Gun Owners of America, and the Association of Virginia Gun Ranges argued that they would suffer irreparable harm if they were not allowed to re-open, and Judge Yeatts agreed. The judge also noted, however, that it wouldn’t just be the range owners who would suffer. There are no outdoor ranges located in Lynchburg, and in fact the city has an ordinance that prohibits the firing of guns outside of approved gun ranges. As Yeatts wrote, “the Court rules that the right to keep and bear arms is not relegated to the outskirts of the city and of fundamental rights jurisprudence.”

The governor will almost certainly appeal Judge Yeatts decision, but for the moment, SafeSide Lynchburg and other indoor ranges in the state are allowed to re-open. The judge made the right call. Let’s hope that the state Supreme Court agrees.

Pastor sues Va. Gov. Ralph Northam after facing fine, jail for holding 16-person church service

A Virginia pastor, who was served a summons for holding a service for 16 people on Palm Sunday, and his church have filed a federal lawsuit against Gov. Ralph Northam for issuing executive orders banning religious gatherings with more than 10 people, saying it violated the Virginia Constitution.

Liberty Counsel, which is representing Pastor Kevin Wilson and Lighthouse Fellowship Church on Chincoteague Island, filed the lawsuit Friday against Northam, whose COVID Order 55 provides for a penalty of up to a year in jail and/or a $2,500 fine.

Police served a summons to Wilson for holding a church service on April 5 for 16 people spaced far apart in a sanctuary that is rated for 293 people, Liberty Counsel said in a statement.

A police officer entered the church without identifying himself and “abruptly” told the congregation “they could not have more than 10 people spaced six feet apart,” the law firm said.

“Then, after the service, two police officers entered the church in full mask and gloves and asked to speak with the pastor. They issued him a summons and informed him that if he had service on Easter, all attending would get the same summons.”

Liberty Counsel said the parking lots of multiple commercial establishments were filled with hundreds of cars Thursday. “Yet, Gov. Northam criminalizes religious worship that exceeds 10 people.”

“Governor Ralph Northam has clearly discriminated against Lighthouse Fellowship Church which provides essential physical, emotional and spiritual services to the community,” The law firm’s chair, Mat Staver, said. “This church does not have internet and cannot flip a switch to broadcast online.”

Staver argued that Wilson protected the health and safety of the 16 people that attended on Palm Sunday by requiring them to be spread far apart in the sanctuary. “But because the church had six more people than the 10 allowed by the governor, the pastor is being criminally charged. We must balance the First Amendment with protecting the health and welfare of people but picking an arbitrary number of 10 people for every church is not the answer,” he said.

Quoting the judgment in W. Va. State Bd. of Educ. v. Barnette, Liberty Counsel noted that the Supreme Court has unequivocally stated, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Commonwealth of Virginia, the statement underlines, “does not have the authority to dictate the manner or form of worship, whether that be online or a 10-person limit.”

Earlier, a Russell County man, Larry Hughes, filed a suit against Northam in Russell County Circuit Court looking for an injunction to allow churches and other faith communities to hold limitless group assemblies, according to Richmond Times-Dispatch.

“[Hughes] will not know the number of participants that may be at a service until he arrives,” the lawsuit read. “Even the pastor of a church may fear numerical non-compliance and simply close the doors to avoid turning out participants during service if the number suddenly exceeds the permissible limit.”

Defending Northam, Attorney General Mark Herring said in a brief he filed, “As a person of faith, the Governor recognized that the temporary gatherings restriction would be particularly hard on religious communities. … The Governor has issued guidance designed to help faith communities maintain their communion and worked with religious leaders to find creative solutions, including online and drive-in services.

“Time and again, large gatherings have provided fertile ground for transmission of this deadly virus — and in-person religious services have not been spared.”

However, Hughes’ lawyer, T. Shead Cook, responded by saying the orders placed “commercial/secular interests above the guaranteed freedom of religion.”

Judge Michael Moore denied the injunction request by Hughes.

No, it’s not hard to believe, but complete understanding of what actually transpired may be.

So no prosecution under 26 U.S.C. § 5861? Well and good, but that’s not the end of it. Read the whole Reason article linked by Clayton especially this one part:

On March 9, the SG finally filed the brief for the United States. There was no confession of error. Rather the Government offered this policy reason for dismissing the indictment so late in the game:

The government explained in a declaration supporting the application that, “[a]fter consultation with the Solicitor General’s Office, the United States Attorney’s Office now has determined that dismissal of this criminal case in the interest of justice.” D. Ct. Doc. 143, at 5. The government observed to the court that “a Department of Justice policy direct[s] prosecutors to charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under 18 U.S.C. § 922(o), rather than, as in this case, under 26 U.S.C. § 5681(d).”Ibid.

The government emphasized that the policy “creates no enforceable rights for a particular defendant” and that the case was “lawfully charged and prosecuted.” Id. at 5-6. But the government explained that it had concluded that because of “the possibility that a similarly situated defendant in another district would not have been so charged and convicted,” “the strong interest in national uniformity in the application of justice provides good cause for the dismissal of the indictment and vacatur of the judgment.” Ibid.

Petitioner did not object to the government’s application. See D. Ct. Doc. 143, at 6. The application remains pending in the district court.

Now this guy is off the hook, as Double Jeopardy -being tried for the same crime twice- applies. But what we really have is a case of the Court slapping the cluebat upside the head of the prosecution and telling them how to do things in the future.

So don’t go and make your emmagees thinking your lawyers can use this dismissal to cover you. All the gubbermint has to do it prosecute under the 922(o) ban, which they didn’t this time. Other cases where the Prosecutors charged under 922(o) have been ‘successful’.

Hard to Believe

A prosecution for unlawful machine gun possession was granted cert by the Supreme Court–and the Justice Dept. filed a motion applying to vacate the judgment and drop the indictment.  (It appears that the defendant challenged the constitutionality of the indictment before this went to trial.)  Huh?

The argument that scared DOJ into dropping felony charges is that:

1. Federal authority to regulate machine guns is derived from their authority to tax them.
2. Since 1986, it is has been unlawful to make them for private ownership.
3. If they will not collect that tax, do they have authority to regulate their possession?

Apparently this is a side effect of ACA which required you to pay a tax for not being insured.  The penalty was reduced to 0 recently by Congress, so the individual mandate no longer has any basis, because it was derived from Congressional taxing authority.  It appears that DOJ has figured what that my friend Stephen Halbrook argued in  U.S. v. Rock Island Armory (C.D. Ill. 1991) could sink machine gun regulation, very quickly:

As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions — including registration of machineguns possessed after May 19, 1986 — are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.

The U.S. Attorney did not appeal that decision, likely afraid it would become precedent for the whole circuit.

Interesting concurrence in the 5th Circuit

The case is US v. McGinnis, an appeal from a conviction for possessing a short-barreled rifle and possession of ammunition while subject to a domestic restraining order. The three-judge panel sustains the convictions, using a traditional standard of scrutiny approach. But two of the three judges write a concurrence (see p. 20), suggesting that the Circuit ought to scrap that approach and go with “text and history,” an approach taken by Justice Gorsuch.

“Not only would this approach provide firmer ground for evaluating restrictions on the right to bear arms, but it would also further cabin judicial application of the “tiers-of-scrutiny approach to constitutional adjudication,” an exercise which ‘is increasingly a meaningless formalism.’

Review Also:

Against the Tiers of Constitutional Scrutiny